Judicial Activism
Feeney Amendment Does Not Violate Ex Post Facto Clause

White Collar Woes

I am a ham and egg lawyer. I have never worked in a big firm. I never clerked for anyone. Law review looked like a stupid waste of time, the professional equivalent of a circle jerk. I don't have institutional clients. The people I represent are usually in a jam of one sort or another with the Government. The so-called "big cases" don't come my way.

So I thought I would try hand at some white collar defense.


For the better part of the past two weeks I have been in trial in a federal workers compensation fraud trial. Mrs. X is alleged to have exagerrated her injuries to obtain a disability pension. My client, her husband, is charged in a superceding indictment as a coconspirator. That's right; the spouse is a louse in the Government's view.

The Government rested last night. The sole evidence against my client? He testified before an administrative law judge about his wife's pain and limitations; he also testified that the Post Office sometimes penalizes those it wants to force to retire by placing them on undesirable shifts. He is a postal union steward.

Perhaps this was a big enough issue to cost the the taxpayers of this country the time and talents of two prosecutors, the time to prepare scores of exhibits, the travel and housing costs of witnesses brought from around the country. But it seems so depressing. There is no dispute that Mrs. X suffers from circulatory problems, degenerative disc disease and nerve damage. The case is about whether she exagerrated.

Most depressing of all was the fact that the Government surveilled this woman for eight months, mounting a camera in a neighbor's home to peer in my clients' backyard and record the woman gardening, carrying things, painting her deck and shoveling snow. No one ever claimed she was a quadrapelegic in an iron lung. Her doctors told her to be as active as she could be. The courtroom almost filled with Government groupies who sat rapt as a videotape of highlights was played. At the intermission there were giggles all around. This is the Government at work?

My client is dubbed a co-conspirator. He has aided and abetted his wife in the receipt of about $140,000 in benefits over the past decade, the Government says. Of course, the Government is trying to keep the jury from hearing the details of Mrs. X's federal lawsuit against postal officials for denying her a reasonable accomodation.

I am arguing a motion for judgment of acquittal as to her husband this morning. Wish me luck. And watch your back ...